On July 20, 2017, Governor Cooper signed Session Law 2017-153 (S569) known as the North Carolina Uniform Power of Attorney Act (NCPOAA).  This new law goes into effect on January 1, 2018 and applies to powers of attorney (POA) in North Carolina.  It repeals provisions in GS Chapter 32A that pertain primarily to financial POAs, including the statutory short form POA in Article 1 and the enforcement provisions in Article 5.  It creates a new GS Chapter 32C.  It does not apply to POAs that grant authority to a person to make health care decisions for another person.  Article 3, health care POAs, and Article 4, consent to health care for a minor, under GS Chapter 32A continue to apply and are mostly unaffected by the NCPOAA.

The NCPOAA adopts, in large part, the Uniform Power of Attorney Act published by the Uniform Law Commission (ULC).  In both the uniform law and the NCPOAA, there are sections on judicial relief.  As noted by the ULC, the purpose of this judicial relief is two-fold: (i) to protect vulnerable or incapacitated persons who grant authority to another under a POA against financial abuse, and (ii) to protect the self-determination rights of the principal.  Uniform Power of Attorney Act, Comment, Sec. 116.

The judicial relief provisions as adopted in NC are heavily modified from the uniform law.  This is due in part to the fact that the judicial relief provisions under the NCPOAA specifically list proceedings that may be brought under the act and allocate jurisdiction over those proceedings between the clerk, who serves as the ex officio judge of probate in NC, and the superior or district court.  The distribution of jurisdiction under the NCPOAA among these judicial officials mirrors estate proceedings under GS 28A-2-4.  There are proceedings that are exclusively within the clerk’s jurisdiction, ones that are initiated before the clerk but may be transferred by a party to superior court, and then finally proceedings that are excluded from the clerk’s jurisdiction.  The NCPOAA also sets forth the procedures, standing, venue, and appeal rights for these proceedings.

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When a court is considering whether to hold a party in civil contempt for the failure to comply with provisions in a child custody order, must the court inform that parent that he has the right to a court-appointed attorney if he wants an attorney and is unable to afford one?

The court of appeals recently held that the answer to that question must be determined on a “case-by-case basis” with appointed counsel being required only “where assistance of counsel is necessary for the adequate presentation of the merits, or to otherwise insure fundamental fairness.”

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In an earlier post about high-profile trials, I touched on a trial judge’s authority to restrict photos, audio, video, and broadcast of all or parts of an open court proceeding.  To sum it up, the court has broad discretion to restrict dissemination of the proceedings in order to protect the integrity of the process. And under the right circumstances someone who violates the court’s directive can be punished.

But what about another high-profile trial issue:  When may a judge prevent people from reporting on or talking publicly about the case?  Or punish a person for doing so? Continue Reading

When a city, county, or other unit of local government is sued for negligence or other torts, it’s common practice for the unit’s attorney to file a motion asking the trial court to dismiss the lawsuit based on the defense of governmental immunity. (See blog posts available here and here for an explanation of governmental immunity fundamentals.)  Many local government attorneys believe that, if the trial court denies such a motion, the unit always has the right to an immediate appeal.  As a recent decision by the North Carolina Court of Appeals reminds us, however, whether the unit may immediately appeal can depend on how the immunity defense is framed in the motion.  This blog post aims to

Faith and Julie have been neighbors and friends for over twenty years.  They are both 75 years old and take daily walks together.  Julie was recently diagnosed with dementia.  Her daughter, Abby, lives a few hours away and is her general guardian, but rarely visits her mother.  Abby hired an in-home aide to assist Julie around the house.  When Faith tries to visit Julie during the day, the aide tells Faith that Julie is no longer up for visits from her or anyone else.  Faith noticed the aide often leaves for hours at a time during the day and locks Julie in the house while she is gone.  A mutual friend told Faith she recently saw Julie and the aide at an estate lawyer’s office and Julie mentioned she was changing her will.  Faith grows worried about Julie and calls Abby to express her concerns.  Abby is overwhelmed with stress in her own life and states that she trusts the aide, but will check in on her mother soon.  Faith doesn’t see Abby visit or any changes to the aide or the aide’s behavior.

In my previous posts, available here and here, I described elder abuse generally and how adult protective services (APS) through the county departments of social services and guardianship proceedings before the clerk of superior court can be tools to protect against elder abuse, neglect, and exploitation (hereinafter, referred to as “abuse”).  However, just because someone has a guardian, it does not mean the risks of such abuse are eliminated.  In fact, guardians, such as Abby, often create circumstances for such abuse by leaving the adult in vulnerable positions and failing to monitor the adult’s care.  In addition, guardians may be the source of such abuse by taking advantage of and exploiting the authority they are given.  One recent report commissioned by the U.S. Senate Special Committee on Aging examined such abuse by guardians after growing concern of abusive practices by guardians.  The study concluded the extent of such abuse is unknown nationally due to limited data but there is some evidence that financial exploitation by a guardian is one of the most common types of elder abuse, which frequently includes the guardian overcharging for services that were either not necessary or never performed or misusing the adult’s money by incurring excessive dining and vehicle expenses.  See Elder Abuse Report, pg. 11 and 14.

The risk of the abuse of an adult under guardianship may be mitigated by (i) court screening of potential guardians through criminal and financial background checks and guardian training or certification requirements, and (ii) court oversight after a guardian is appointed through the filing with the court of status reports, which are reports on the care, comfort, and maintenance of the adult, and accountings, which are reports on the financial affairs of the adult. Even with effective screening and oversight, abuse may still occur when someone has a guardian.

So, what steps may someone, like Faith, who is concerned about abuse of someone under guardianship either by the guardian or a third-party take to protect the adult?   Continue Reading